The FMLA & Pattern Abuse
The Family and Medical Leave Act, or FMLA, is designed to protect employees who need time away from work for legitimate purposes such as medical problems or adoption. Unfortunately, employees may try working the system to receive benefits for which they are ineligible. Employers can fight back by identifying patterns.
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A Note About FMLA Abuse
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As an employer, it is advisable to use caution in making accusations of FMLA abuse. Using the resources available within the guidelines of the FMLA will guarantee the best results when trying to identify employees who are misusing leave time. Keeping accurate, complete records and avoid jumping to conclusions is the best way to handle these situations.
Intermittent FMLA Leave
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Most employers will cite intermittent leaves as their most notorious culprit in FMLA abuse. Employees with approved intermittent leave may have the option to take unscheduled leave time which can make it difficult to track. Employers should look for habitual patterns of absence that are not likely to be occurring as a result of the employee's FMLA leave reason.
Example: Nancy has an approved FMLA Intermittent Leave for migraine headaches. She is certified by a doctor to take up to a maximum of three days per month as a result of debilitating symptoms. When looking at her absence tracking for FMLA over a six month period, you notice she habitually uses two days a month falling on a Friday and the following Monday. Her third day per month routinely falls on a Friday or Monday as well.
In this case, Nancy's absence patterns are indicative of abuse. She rarely uses her FMLA time on days that do not result in a three or four day weekend and it is unlikely to be a coincidence over this period of time. In other words, the probability of her migraines routinely falling on a Monday or Friday is low. Although the pattern itself is not proof, it opens up an opportunity for the employer to initiate a conversation and possibly ask the employee to re-certify the leave.
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Continuous or "Block" FMLA Leave
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Abuse patterns of employees taking continuous periods of FMLA time may be harder to identify. This is highly in part to their absence from the office and inability of colleagues or managers to observe activity. However, there is still potential to identify problematic patterns.
Example: John has been your employee for five years. During that time, he has routinely voiced frustration around being unable to take vacation during your busy time which falls in February. During the past three years, he has requested FMLA Family Leave to care for an ill parent during the same two weeks in February. While he has always been able to provide a doctor's certification, you have some doubts about the integrity of the document.
Again, in this scenario it is unlikely that the employee's parent would fall ill during the same two weeks in February three years in a row. In this case, it may be worth initiating a conversation or asking for further documentation within the guidelines of the FMLA.
Next Steps
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As an employer, your best defense against FMLA abuse is keeping good records and staying in touch with employees on leave. While it is not your job to be a full fledged detective, it is advisable to reach out to employees on leave and let them know you are aware of their situation and progress. Attentiveness exhibits a genuine sense of interest in your employees' well-being and may also deter potential abusers from unfavorable actions.
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References
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